In Re duncan/walker Children

William B. Hoffman, Presiding Judge,

concurring in part and dissenting in part.

I fully concur in the majority’s disposition of appellant’s second assignment of error. However, I respectfully dissent from the majority’s analysis and decision to sustain appellant’s first and third assignments of error.

The majority contends, “The issue presented is, When an attorney is appointed as guardian

ad litem

for a juvenile, does the attorney automatically become the attorney for the ward?” I do not find this issue to have been raised either in the trial court or in the appellant’s assignments of error, or even mentioned as being a subissue anywhere in the appellant’s brief. No one, including the trial court, has raised any objection to the guardian

ad litem

filing proposed findings of facts on behalf of the ward. Regardless of whether the guardian

ad litem

was separately appointed as attorney for the ward and thereby formally authorized to file proposed findings-of facts, the trial court nevertheless adopted those proposed findings of facts as its own. It should not be forgotten that those findings were jointly filed with counsel for the appellee-mother. Once they were adopted

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by the trial court, I find the question of who submitted the proposed fact findings to be of little, if any, significance, as long as they were duly considered and adopted by the trial court as its own and are supported by the evidence. Upon review of the record, I find there exists sufficient evidence to support the trial court’s factual findings, and therefore the trial court’s decision to deny appellant permanent custody and to order long-term foster care was neither against the manifest weight of the evidence nor error as a matter of law. Accordingly, I would affirm the decision of the trial court.

Though not necessary to my decision, I nevertheless feel compelled to address the issue deemed controlling by the majority. Though I share the view that there is “confusion as to the role of the guardian

ad litem

as delineated from that of the attorney for the ward,” I do not share the majority’s position that there must be a formalized dual appointment and a finding that no conflict exists before a guardian

ad litem

may also serve as attorney for the ward.

Juv.R. 4(C)(1) states that where the guardian

ad litem

is an attorney admitted to practice in this state, the guardian may also serve as counsel to the ward, provided that no conflict between the roles exists. It appears to be the common practice of the trial court to allow a guardian

ad litem

who is also an attorney to serve as counsel for the ward at various stages of the proceeding without a separate entry of appointment. I find that the trial court’s acquiescence in (if not encouragement of) the guardian

ad litem’s

participation as attorney for the ward constitutes a de facto appointment. Should a conflict between the two roles become evident to either the guardian

ad litem

or the trial court at any stage, Juv.R. 4(C)(2) specifically provides for the appointment of a new guardian

ad litem.

Though I would concede that a formalized entry reflecting dual appointment might be the better approach, I do not find the de facto appointment procedure utilized by the trial court in the case

sub judice

to constitute error as a matter of law, let alone reversible error as found by the majority.

Under R.C. 2151.414, a hearing on a motion for permanent custody requires clear and convincing evidence that (1) it is in the best interest of the child to permanently terminate parental rights and grant permanent custody to the agency that filed the motion and (as applicable to the case

sub judice)

(2) the child is not abandoned or orphaned and the child cannot be placed with either of his parents within a reasonable time or should not be placed with his parents. In a permanent custody hearing both elements must be adjudicated. If these two elements are found by the trial court, there is no separate dispositional hearing because the statute provides that if parental rights are terminated, permanent custody is granted to the agency that filed the motion. See, also, Juv.R. 2(1) (setting forth the definition of “adjudicatory hearing”). I find no requirement under R.C. 2151.414 comparable to that found in R.C. 2151.35(B)(1) which

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requires separate adjudicatory and dispositional hearings in a case alleging a child to be abused, neglected or dependent. Should the trial court deny the motion for permanent custody, the trial court then proceeds to dispositional hearing under R.C. 2151.415, as noted by the majority.

One final note. Though I agree that the characterization of the guardian

ad litem’s

report as evidence was improper, the report was nevertheless properly received by the trial court for consideration in making its determination of the permanent custody motion. The guardian’s report is specifically required to be submitted prior to or at the time of the hearing on a motion for permanent custody pursuant to R.C. 2151.414(C).